1Introduction
1.This report examines the impact of Covid-19 on the courts and tribunals in England and Wales. The Committee pays tribute to everyone in the justice system who has enabled courts and tribunals to continue to function during this extraordinary period. On 22 May, the Lord Chief Justice, Lord Burnett of Maldon, told the Committee that the decision was taken in the early stages of the pandemic “to keep the wheels of justice turning”.2 That has required an incredible effort from all involved to provide the service available while the most stringent public health measures were in force from 23 March 2020.
2.The Lord Chancellor and Secretary of State for Justice, Rt Hon Robert Buckland QC, told the Committee on 23 June 2020 that “the story of the crisis has been the ramping up the scale of the use of technology”.3 The Lord Chancellor is right to be satisfied that technology has enabled “justice to continue to operate”.4 However, behind this narrative, there are important lessons for the justice system to learn from the crisis caused by Covid-19. The Lord Chief Justice, the Lord Chancellor and Susan Acland-Hood, the Chief Executive of HM Courts and Tribunal Service, have all emphasised that each jurisdiction has adapted differently. It is, though, a matter of concern that some of the most public-facing elements of the justice system—the magistrates’ courts, the Crown Court and the family courts—appear to have fared the worst.
3.Even in those elements of the system which have operated at close to normal levels—for example some tribunal jurisdictions—lessons are there to be learned for the future, in terms, for example, of the practical impact of technology on access to justice or for how change is implemented in the justice system. In areas where technology has not been as helpful, such as jury trials, the crisis has exacerbated pre-existing concerns about the capacity, administration and infrastructure of the justice system in England and Wales.
4.Recognition of the significant achievements of the justice system in responding to Covid-19 should not obscure the scale of the challenges facing the courts. The number of outstanding cases in the magistrates’ courts and the Crown Court is a pressing concern.
5.Some of the changes made to courts and tribunals since March 2020 are likely to have long-term implications (see Box 1 for an outline of some major changes that have occurred since the pandemic began). Many were unavoidably subject to limited scrutiny and debate before they were enacted. It is therefore vital that all those changes made, whether technological or procedural or more fundamental, are now subject to rigorous evaluation. To conduct rigorous evaluation at pace, mechanisms for capturing the impact of reform must be built into the design from the beginning. There are reasons to be concerned that this is not happening as much as it should, which are set out in this Report.
6.We pay tribute to Her Majesty’s Court and Tribunal Service, the Judiciary and the staff who work in the courts of England and Wales for maintaining significant levels of service during the period since March 2020. We commend HMCTS and the judiciary for demonstrating how rapidly change can be successfully made in the delivery of justice across all jurisdictions.
7.One of the clearest lessons of the crisis response since March 2020 has been how quickly the justice system can reform when needed. Her Majesty’s Court and Tribunal Service (HMCTS) will need to continue to deliver change at pace in order to implement the recovery plan which is beginning to take shape. Continuing to do so without the spur of necessary emergency response will be a significant challenge in the long term.
8.We recommend that HMCTS sets out how it intends to evaluate both the practical and qualitative effects of the changes carried out at pace in response to the Covid-19 pandemic. In particular, work must be done urgently to identify the effects of increased use of digital technology for the delivery of justice not only on the process and disposal of cases but on the results obtained for those whose cases and hearings have taken place; their perception on the fairness of the proceedings, regardless of outcome; and the barriers to access and understanding that may have arisen for both participants in cases and the wider public, including the media. We invite the Ministry of Justice to set out a timetable for obtaining that essential feedback.
9.We would also warn that changes introduced in response to an emergency should not be regarded as irreversible if they can be demonstrated to have impeded access to justice or resulted in less than optimal outcomes for those whom the justice system exists to serve.
10.In this short report, it is not possible to provide a complete picture of the impact of Covid-19 on courts and tribunals in England and Wales, not least because of the complexity and diversity of jurisdictions. The Committee welcomes the fact that HMCTS is publishing weekly management statistics.5 However, we share frustration expressed by the Lord Chief Justice, and recent reviews of the courts system, at the absence of publicly available data on what is happening day to day. We recognise that the situation is improving but it is vital that as the use of technology increases, the quality of publicly available data improves.
Box 1: Covid-19 and the courts: a timeline
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4 For information on how other jurisdictions have used remote hearings during the crisis see: https://www.nuffieldfjo.org.uk/files/documents/remote-hearings-in-light-of-covid-19.pdf; for an account of how Australian courts have used virtual hearings see: Joe McIntyre, Anna Olijnyk and Kieran Pender, Courts and COVID-19: Challenges and Opportunities in Australia, Australian Public Law (4 May 2020)
5 HMCTS, HMCTS weekly management information during coronavirus - March to May 2020 (Last accessed 13 July 2020)
6 Lord Chief Justice, Coronavirus (COVID-19): Jury trials, message from the Lord Chief Justice (Last accessed 13 July 2020)
7 Lord Chief Justice, Review of court arrangements due to COVID-19, message from the Lord Chief Justice (Last accessed 13 July 2020)
8 Coronavirus Act 2020, sections 53–57
9 HMCTS, HMCTS daily operational summary on courts and tribunals during coronavirus (COVID-19) outbreak (Last accessed 13 July 2020)
10 Nuffield Family Justice Observatory, Remote hearings in the family justice system: a rapid consultation, May 2020
11 Equality and Human Rights Commission, Inclusive justice: a system designed for all: Interim Findings, April 2020
12 The Civil Justice Council and the Legal Education Foundation, The impact of COVID-19 measures on the civil justice system: Report and recommendations, May 2020
13 Courts and Tribunals Judiciary, Jury trials to resume this month (Last accessed 13 July 2020)
14 HMCTS, COVID-19: Update on recovery in courts and tribunals (Last accessed 13 July 2020)
15 HMCTS, Courts and tribunals tracker list during coronavirus outbreak (Last accessed 13 July 2020)
16 HMCTS, Courts and tribunals tracker list during coronavirus outbreak (Last accessed 21 July 2020)
17 HMCTS, Courts and tribunals tracker list during coronavirus outbreak (Last accessed 21 July 2020)
Published: 30 July 2020